Committee stage debate of Protection of Freedoms Bill FOI clauses

The House of Commons' Committee considering the Protection of Freedoms Bill last week reached the clauses of the Bill relating to datasets, Freedom of Information and the independence of the Information Commissioner.

Clause 92 of the Bill amends section 11 (Means by which communication to be made) of the Freedom of Information Act 2000, by providing, amongst other things, that where an FOI request is made for a dataset to be provided in electronic form:

• it must, so far as reasonably practicable, be supplied in a reusable format; and
• if the public authority is the copyright holder, no copyright restrictions may be imposed on its reuse other than those set out in a 'specified licence'. 

However, the Campaign for Freedom of Information has highlighted a number of concerns with the definition of the term 'dataset' which underpins the measures. It has pointed out that new subsection 5(c) of the definition currently provides that a dataset ceases to be a dataset if any change is made to the way in which the information in it is presented. On the face of it this means that even a modest change in presentation, such as the merging of two columns of data into one, or the separation of one column into two, would mean that the information ceased to be a dataset. This would lead to the new dataset provisions being circumvented by relatively modest changes to the way in which the dataset is presented.

This issue was raised by Tom Brake MP (Lib Dem, Carshalton) and Vernon Coaker MP (Lab, Gedling) during the debate. In response, the minister, Lynne Featherstone, promised to look again at the drafting of the clause:

Lynne Featherstone: Both the hon. Member for Gedling and my hon. Friend the Member for Carshalton and Wallington asked whether the definition of datasets excludes basic organisation of the information in a dataset, such as sorting alphabetically or merging two documents. We accept that the information in many datasets may have undergone some reorganisation or change in presentation; I am talking about the minor amendments that my hon. Friend was concerned might lead to a wrong use of subsection (5)(c). The objective and intent for a change is that it is not significant or substantive, such that it still constitutes the factual source data or raw data, un-manipulated in form. The policy is that such datasets are still covered by the definition. Such minor alterations, which are not significant or substantive but involve just a reorganisation or change in how the information is presented, are still covered by the definition of “dataset”, which is a subset of “information” under freedom of information legislation...Organised and adapted in such a context means that the information must have been materially organised or materially adapted for the information not to constitute a dataset.

Vernon Coaker: In all honesty, the Minister needs to look at how the clause is drafted. It does not say that. I am not making a point of difference or a point of principle, nor am I angry about the matter and think that it is a disgrace. I agree with the hon. Member for Carshalton and Wallington. If the hon. Lady reads subsection (5)(b) and (c)—

Lynne Featherstone: I did.

Vernon Coaker: I know that the hon. Lady has just read out subsection (5)(c). Such provisions are a lawyer’s paradise. In calmer times, she must just check whether the clause needs to be looked at again or materially altered. I am not a lawyer, so we will no doubt have a row about the meaning of “materially”. She might want to reflect on such matters and change them.

Lynne Featherstone: I hear what the hon. Gentleman is saying about the concerns that the drafting of the clause does not match its intention. I am happy to have a look at it. My understanding is that the clause does say what I intend it to say, but I take such the advice in the spirit in which it was offered and will have a second look at it. I definitely would not wish to give the lawyers a feast.

Clause 92 also amends section 19 of the FOI Act, requiring authorities to publish any requested dataset as part of their 'publication schemes' and keep it up to date, unless the authority is satisfied that this is not appropriate. The Campaign for Freedom of Information has pointed out that this involves a subjective test and would be difficult for the Information Commissioner to oversee. The minister has also now promised to look again this:

Vernon Coaker: I will be accused of being a pointy-head for other reasons in a minute, but clause 92(4)(a) states that a publication scheme must, in particular, include a requirement for the public authority concerned to publish,

“unless the authority is satisfied that it is not appropriate for the dataset to be published”.

To use the words “is not appropriate” makes the provision incredibly wide. The hon. Lady might say that she totally disagrees with what I have said, and that the provision is not widely drawn at all. I think that it is. It is a drafting point; it is not a point of principle. When the words “is not appropriate” are included, people will argue about their meaning. It is a get-out for people. If an authority does not wish to publish, it can say, “It is not appropriate for us to publish”.

Lynne Featherstone: I hear what the hon. Gentleman is saying, but I imagine that it is an interpretation in law. He is right in that there is an opportunity, if that is how he is framing this, in the words,

“unless the authority is satisfied that it is not appropriate for the dataset to be published”.

Clearly, that is not meant to be a get-out clause for authorities not to publish. The presumption and the message going out is that everything that can be published, should be published, but I will take that away and have a look at it.

The minister also responded to views expressed during oral evidence to the Committee, that if the Information Commissioner is to be limited to single term of office, it should be for longer than the 5 years proposed in the Bill. Government amendments to increase the term to 7 years were passed by the Committee.

With amendments 150 and 151, the Government want to increase the length of the single period of office from five to seven years. Both the Information Commissioner and the Campaign for Freedom of Information have welcomed the move to a single term of office...In oral evidence to the Committee, the Campaign for Freedom of Information suggested that a five-year term might be too short to allow the commissioner to be fully effective and could limit the field of applicants for the role. We have looked again at that point in the light of the concerns that were raised...Lengthening the term that the Information Commissioner serves to seven years is an appropriate response to the concerns expressed to the Committee, balanced against the points made by the Public Administration Committee and the Tiner review. Additionally, a seven-year term is consistent with similar appointments such as the Parliamentary and Health Service Ombudsman, who is also appointed for a single, non-renewable term of up to seven years.

But the minister confirmed that the Government were not considering extending the provisions on datasets to the Environmental Information Regulations as well as the Freedom of Information Act:

The Government consider that the environmental information regulations implement Council directive 2003/4/EC on public access to environmental information. No changes to the regulations are currently being considered. The environmental information regulations already require environmental information datasets to be proactively disseminated to the public, so there was no need for us to cover the same ground. 

A number of wider points aimed at strengthening the FOI Act were raised by Tom Brake MP. The minister responded that many of these fell outside the remit of the Bill, but that the parliamentary committee may want to consider them when it undertakes post-legislative scrutiny of the FOI Act later this year.

The Hansard of the debate is available here. You can watch the debate here.